Judgment

PALEKAR J.:- This appeal by special leave against the decision of the appellate Bench of the Allahabad High Court involves the question of the legality and validity of an order dated 12th May, 1965 passed by the State Government purporting to act under Section 34 (1-B) of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as "the Act"). The impugned order is as follows:-

"U. P. Government

Department of Municipal Board,

Serial No. 1725 GI IIP 1964/64 12-5-65.

NOTIFICATION

The then Executive Officer of Municipal Board, Kannauj dismissed 74 sweepers of Municipal Board Kannauj from 9th April, 1964 under Section 76 of U. P. Municipalities Act, 1916.

The dismissal of the above sweepers was illegal and improper because the procedure prescribed in R. 5 of the Uttar Pradesh Municipal Karamchari (Janch, Dand Tatha Seva Sampati) Niyamawali (U. P. Municipal Boards Servants (Enquiry, Punishment and Termination of Service Rules) was not followed and they were not given any opportunity of being heard and the opinion of the State Government is that the above order of 9th April, 1964 by the present Executive Officer Municipal Board Kannauj is adverse to public interest and the order has been made by seriously defying the rules of Uttar Pradesh Municipal Karamchari Janch, Dandtatha Seva Sampati Niyamawali (U. P, Municipal Boards Servants (Enquiry, Punishment and Termination of Service Rules).

So, the Governor of Uttar Pradesh in exercise of his power under Section 34 sub-section (1-B) of the U, P. Municipalities Act, 1916 (U. P. Act No. 2 of 1916) prohibits the execution of the above order of 9th April 1964 and any act done by any person in pursuance of that order and the continuance of that order.

By order

Pran Nath Kapoor

Secretary."

This order was challenged in a writ petition before the High Court by the Municipal Board, Kannauj as being illegal and invalid on several grounds.

2. The substance of the allegations in the petition by the Municipal Board was that, on account of certain disputes between the Board and the sweeper-employees of the Board, there was a sudden strike by the latter on 7th April, 1964. As many as 74 sweepers struck work without notice. By reason of the strike, insanitary conditions developed in the town endangering public health. The Board had, therefore, to act quickly as in an emergency to recruit sweepers to do the job; but it was difficult to recruit new men unless continuous employment was given to them and, hence, on 8th April, 1964, the Board arranged to have it announced by beat of drum in the town that, unless the striking employees resumed duties by the evening of 9th April 1964, they were liable to be dismissed. The strikers did not join duties by the evening of 9th April,1964 and, therefore, the Executive Officer of the Board dismissed the 74 strikers who were made parties to the petition. It was admitted that the procedure laid down by Rule 5 (1) of the Uttar Pradesh Municipal Boards Servants (Enquiry, Punishment and Termination of Service) Rules (hereinafter referred to as the Rules") was not adopted before taking disciplinary action by way of dismissal; but the Board justified its action by reference to the proviso to Rule 5 (1) which stated that the provisions of Rule 5 (1) shall not apply where the person concerned had absconded and where, for reasons to be recorded in writing, it was impracticable to communicate with him. After the dismissal of the 74 employees on 9th April, 1964 some of the employees appealed against the order of dismissal and most of them were reinstated. The others did not appeal and, therefore, the order of dismissal stood in their case. New recruits were appointed in their place. Later, i.e, more than a year after the order of dismissal, the State Government, purporting to act under Section 34 (1-B) of the Act, passed the above order prohibiting the execution or further execution of the order of dismissal passed by the Executive Officer. It was contended that no